Her Majesty the Queen - v. -, 2010 SKPC 151

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 151 Date: December 21, 2010 Information: 43397888 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Erin E. Norlin Appearing: Lori Chambers For the Crown William Klebeck For the Accused JUDGMENT P.S. KOLENICK , J BACKGROUND [ 1 ] The accused is charged that she did, on or about August 9, 2009, at Saskatoon, commit the following offence:

Without reasonable excuse, fail or refuse to comply with a demand made to her by a peace officer pursuant to s. 254(2) of the CriminalCode, to provide a sample of his breath to enable analysis to be made by means of an approved screening device, contrary to s. 254(5) ofthe Criminal Code. [2] The Crown has alleged that the accused had ample opportunity to provide a suitable sample and failed, without reasonableexcuse to comply. However, the accused testified on her own behalf.

While she did concede that a suitable sample had not beenprovided, it was as a result of being nervous at the time the attempts were made, and despite her best efforts. Therefore, she alleges therewas a reasonable excuse for failing to comply with the demand, as set forth in s. 254(5) of the Criminal Code. [3] I had occasion to consider this nature of scenario previously in R. v. Mowery (M.G.W.) (2008) 2008 SKPC 27 , 328Sask. R. 1. Although every case is a product of its particular circumstances, and the issues were not entirely the same, it does containsome general aspects which are useful for present purposes.

Therefore the issues which can be restated that are relevant for this case, areas follows: Is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt that the accused had failed to comply with ademand for an approved screening device sample, as contemplated in s. 254(2) of the Criminal Code?

Is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt that the accused did not have a reasonable excusefor failing to comply with the demand for the approved screening device sample, as contemplated in s. 254(5) of the Criminal Code? [4] As noted, the only real value in Mowery, supra for this matter before the Court is the statement of general principles. I hadstated as follows at para. 20: [20] The onus is on the Crown to prove beyond a reasonable doubt all of the constituent elements of the offence.

On the authorities,the same burden applies to the Crown, where, as occurred here, the accused claimed that he had a reasonable excuse for the allegedfailure to comply. (R. v. Lewko (2002), 2002 SKCA 121 , 227 Sask. R. 77 (Sask. C.A.)). The pertinent provisions of s. 254provide as follows:

(2) Where a peace officer reasonably suspects that a person who is operating a motor vehicle or vessel or operating or assisting in theoperation of an aircraft or of railway equipment or who has the care and control of a motor vehicle, vessel or aircraft or of railwayequipment, whether it is in motion or not, has alcohol in the person’s body, the peace officer may, by demand made to that person,require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a properanalysis of the breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer forthe purpose of enabling such a sample of breath to be taken. ...

(5) Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peaceofficer under this section. [5] And further commencing at para. 32: [32] Regardless, in general the burden is on the Crown to prove the constituent elements of the offence beyond a reasonable doubtwith credible evidence, and the accused is presumed to be innocent until proven guilty. In assessing credibility, the Court is guided bythe principles restated in R. v. McKenzie (P.N.) (1996), (SK CA), 141 Sask. R. 221 (Sask. C.A.) (from R. v. Rose (A.)(1992), 20 B.C.A.C.)), para. 4:

First, if you believe the accused, obviously you must acquit; Secondly, if after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [33] The determination of credibility does not involve the Court opting for one version of events or the other.

Rather, the Crown must prove that its evidence is credible, and there is no onus on the accused whatsoever in that respect. Even if the Court prefers the evidence of the Crown, it must still consider whether the evidence for the defence raises a reasonable doubt. Therefore, credibility of the material witnesses needs to be considered. REVIEW OF THE CROWN EVIDENCE Constable Tosha Ternes [ 6 ] Constable Ternes, a peace officer with the Saskatoon Police Service, was on duty with her partner, Constable Scott Marten, in uniform and operating a marked police vehicle.

At roughly 2:55 a.m., she saw the accused’s motor vehicle eastbound on 8 th Street. She observed that the vehicle started to hug one lane and also changed lanes without signalling. As well, it had almost slowed to a complete stop. [ 7 ] The officer was suspicious, so she activated the emergency equipment on the police vehicle, in order to check the accused for sobriety. When the accused had stopped, the officer approached the driver’s side and spoke to the accused, who was behind the wheel. There was also a male in the front passenger seat.

She requested the accused to produce her driver’s license which in due course, she did. The male passenger was interfering with the officer’s efforts to properly speak to the accused. Therefore she asked the accused to exit from the vehicle, and went with her outside and behind the car so they could talk. The accused advised that they had been at the bar and she had about three drinks. As well, the officer was able to smell alcohol on the accused once they were outside. [ 8 ] Therefore the officer requested the accused to enter into the police vehicle, where Constable Martin also was still seated.

The accused was placed in the rear of the police vehicle and the officer opened the silent patrolman so the parties could converse. In that regard she read a demand for an approved screening device sample, to which the accused confirmed she understood. The model of the device use was the Alcotest 7410 GLC. Constable Ternes confirmed that she was qualified to operate approved screening devices and had some past experience in the course of her duties. [ 9 ] She used a new mouthpiece, and carefully explained to the accused the need for a strong, sustained breath for an adequate sample.

Constable Marten was present as well, documenting the results. She attempted to provide a sample thirteen times, without success. All efforts by the officer to explain the procedure for a proper sample were in vain. The accused was giggling some of the time, not taking matters seriously. On some of the attempted samples, she was letting air escape past the mouthpiece. [ 10 ] As this whole procedure was ongoing, the officer warned her that if she did not cooperate, criminal charges would ensue.

However, the accused claimed she was trying. [ 11 ] The accused did not appear to have any physical problems or breathing issues, and may well have passed had she provided a suitable sample.

[ 12 ] In cross-examination Constable Ternes confirmed that she had used this particular approved screening device before, and was familiar with it. As well they had started with a new mouthpiece. [ 13 ] The accused had indicated throughout that she was trying her best to comply. Indeed she did not appear to be very intoxicated, and may well have passed had she provided a proper sample. Constable Scott Martin [ 14 ] Constable Martin, a peace officer with the Saskatoon Police Service, confirmed that he was on duty at the material time.

As well, he is qualified and has experience as an approved screening device operator. He had observed the accused’s motor vehicle swerving between lanes on 8 th Street in Saskatoon. They activated the emergency equipment on the police vehicle. The accused pulled into the McDonald’s drive-thru and came to a stop. [ 15 ] In due course the accused was placed in the police vehicle.

Before proceeding with the attempted approved screening device samples, the accused had successfully recited the alphabet, as requested. [ 16 ] Regardless, the accused had not managed to provide a suitable sample despite thirteen attempts, the results of which for each the officer had documented in his notes. [ 17 ] As well, in his view, the approved screening device had been working properly. Generally speaking, the samples which had been attempted were too brief in duration or the accused not blowing at all.

On one of them, she had blown past the tube and on another did not have her lips tight around the mouthpiece. In the course of events, she had been warned twice that she could be charged with the offence of refusal. Despite that, she was giggly, and did not appear to be taking the situation seriously. [ 18 ] In cross-examination Constable Martin confirmed that the approved screening device had been working properly, but the accused had not provided deep long air for an adequate sample.

She had been warned of the consequences of failing to provide the breath sample, but had insisted she was trying her best to comply. EVIDENCE FOR THE DEFENCE The Accused [ 19 ] Ms. Norlin, age 25, confirmed that the motor vehicle she had been operating was registered to her boyfriend, George Blight. He had been in the passenger seat, at the material time. In the past she has had very little contact with the police in her life, and was made very nervous by the matters as they allegedly unfolded. [ 20 ] On the evening in question she had operated the motor vehicle to the Double Deuce bar, with her boyfriend.

They remained there from roughly 7:00 p.m. to 11:00 p.m., during which she had two light beer. Thereafter, she drove again to the Overdrive bar, where they remained between approximately 11:30 p.m. and 2:30 a.m. During that time she had one more drink, a vodka, before they departed. She was driving once more. The plan was to attend a McDonald’s for food.

As she approached the restaurant she was searching in her purse for money, and also had some traffic pylons in the area which may have caused her to swerve somewhat, therefore she had slowed down in order to get around them. [ 21 ] She became aware of the emergency lights, so pulled into the McDonald’s drive-thru parking area and stopped. A peace officer came to the window and asked her where she had been. She was made very nervous by this encounter, but was able to provide

her driver’s license. However, her only problem was nervousness, otherwise she had no other reason not to be able to provide a sample as directed. [ 22 ] After the first attempt, the officer told her she had not blown hard enough, and to blow longer. Therefore she tried to blow long and hard on each successive attempt. She believed she was providing samples on each occasion that were four or five seconds in length, but the officer said they were not good enough. She did her best on all of the twelve or thirteen attempts, but did not succeed in providing an adequate sample.

As a result, she was charged with the matter before the court. [ 23 ] In cross-examination the accused confirmed that she was the driver that night because she was not planning to drink very much, and would not have been driving at all if she had too much to drink. [ 24 ] When she first was aware of the police, she was nervous by their presence, and also because she tends to be a nervous person. That was despite the fact that both officers had treated her properly.

In that regard, she was shaking in the backseat of the police vehicle as she attempted to provide a proper sample and was frustrated at herself for not being able to comply. She agreed also that generally, the direction as to the proper use of a mouthpiece is not a difficult request, but had not been able to succeed in providing a suitable sample in those thirteen attempts. CONCLUSION [ 25 ] In assessing the credibility of the Crown evidence on that basis, the Court cannot find any significant problem with the manner in which the officers have conducted the themselves in the circumstances as they unfolded.

There was some erratic driving observed which caused them to stop and detain the accused on the suspicion that they had encountered an impaired driver. Indeed, Constable Ternes was able to smell alcohol on the accused once she had a chance to speak to her outside and the accused confirmed that she had three drinks. Beyond that, the signs of impairment were slim, and did not give rise to a further charge of impaired operation, contrary to s. 253(1) (

a) of the Criminal Code . In any event, the officers were professional, informative and courteous with the accused and did what they could to have her provide a suitable sample into the approved screening device. That they allowed this procedure to be repeated thirteen times in the hope that it would ultimately be successful, was an indication of good faith by them in the accused that she should be provided every reasonable opportunity to comply with the breath demand.

It was also appropriate to warn the accused that she would be charged with refusal if they were unable to secure an adequate sample. [ 26 ] Conversely, there are concerns with the accused’s claim that, but for her state of nervousness in her encounter with the police, she would have succeeded in at least one of those thirteen failed attempts. She is physically healthy and has no breathing impediments. Her signs of impairment were slight, and may well have passed had she proceeded to provide the sample in the normal course of events.

She should have been able to regain her composure and provide the required sample on at least one of her attempts, had she intended to comply. Unfortunately, her lack of past contact with the police, or experience with an approved screening device, apparently caused doubt in her own mind, whether she would pass or fail from the particulars of her alcohol consumption that evening.

Rather than risk a “fail” result, she put a half-hearted effort into the various attempts. [ 27 ] Therefore the evidence for the Crown is sufficiently credible to prove beyond a reasonable doubt that the accused had failed to comply with the demand for the approved screening device sample, as set forth in s. 254(2) of the Criminal Code . Likewise the evidence for the Crown is sufficiently credible to prove beyond a reasonable doubt that the accused did not have a reasonable excuse for failure to comply with the demand, as contemplated in s. 254(5) of the Criminal Code . ____________________ P.S. Kolenick, J